Re Confidential and Commissioner of Taxation

[2013] AATA 382

Division TAXATION APPEALS DIVISION

File Numbers

2011/2873 - 2011/2877
2011/2879 - 2011/2883
2011/2884 - 2011/2888

Re

Confidential

APPLICANT

And

Commissioner of Taxation

RESPONDENT

INTERLOCUTORY DECISION

Tribunal
Egon Fice, Senior Member

Date 6 June 2013

Place Melbourne
The Tribunal refuses the request of the applicants to reopen the substantive hearing in these matters.
.......[sgd Egon Fice].................................................................
Egon Fice, Senior Member
PRACTICE & PROCEDURE – Request to reopen the hearing – Taxation – Onus of Proof – Failure to call applicant as a witness – The Tribunal’s discretion – Procedure of the Court and Tribunal in taxation matters – Impact of reopening the hearing on the correct or preferable decision – Irremediable prejudice – Expeditious hearing and disposition – Public interest in a finality in litigation – Deliberate choice not to adduce evidence – Four classes of cases recognised by the courts
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 33, 39
Income Tax Assessment Act 1936 (Cth) s 167
Migration Act 1958 (Cth)
Pay-roll Tax (Territories) Assessment Act 1971 (Cth) s 63
Safety Rehabilitation and Compensation Act 1988 (Cth)
Taxation Administration Act 1953 (Cth) ss 14ZQ, 14ZZ, 14ZZK, 14ZZO
Veterans’ Entitlements Act 1986 (Cth) s 120
Wool Tax (Administration) Act 1964 (Cth) s 43A
Cases
Boucher v Australian Securities Commission (1996) 71 FCR 122
Bushell v Repatriation Commission (1992) 175 CLR 408
Eldridge v Federal Commissioner of Taxation (1990) 21 ATR 897
Gashi v Commissioner of Taxation [2012] FCA 638
Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81
Jones v Dunkel (1959) 101 CLR 298
Kowalski and Military Rehabilitation and Compensation Commission [2007] AATA 1988
McCormack v The Commissioner of Taxation of the Commonwealth of Australia (1979) 143 CLR 284
McDonald v Director-General of Social Security (1984) 1 FCR 354
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013)
Murray v Figge (1974) 4 ALR 612
Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6
Re Gomez and Commonwealth of Australia (1988) 15 ALD 784
Spotlight Pty Ltd (ACN 005180861) v Ncon Australia Ltd (ARBN 099019851) [2012] VSCA 232
Sullivan v Department of Transport (1978) 1 ALD 383
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported decision, Federal Court of Australia, 6 May 1997)
The Commissioner of Taxation for the Commonwealth of Australia v Dalco (1990) 168 CLR 614
The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust (ACN 083629225) v Lenard's Pty Ltd (ACN 010711145) (No. 2) [2004] FCA 1310
Secondary Materials
Heydon JD, Cross on Evidence (9th ed, LexisNexis Butterworths, 2013)
Federal Court Rules 2011, r 33.03
REASONS FOR DECISION
Egon Fice, Senior Member
6 June 2013

The applicants in this proceeding are two individuals, a husband (File no: 2011/2879-2883) and wife (File no: 2011/2873-2877) as well as those individuals trading as a partnership (File no: 2011/2884-2888).
The applications to this Tribunal are in respect of objection decisions made by the Commissioner of Taxation (the Commissioner) resulting from amended income tax assessments to the two individual applicants, and assessments of GST liability for the partnership in the income years ended 30 June 2002 to 30 June 2006.
The Commissioner conducted an audit of the business carried on by the partnership after a preliminary examination indicated funds deposited into the family and business bank accounts significantly exceeded the income returned the years in question. The auditor found source documents to be poorly maintained; sales invoice books had incomplete pages; pages were not completed sequentially; sales from different years were recorded in the same book; invoices were undated; there were large gaps between dates for consecutive invoices; and no reference was made to when amounts were banked. The auditor was unable to match deposits into the business account with the sales invoices provided. Because of the poor records, the auditor prepared T-Accounts for each of the years examined. The T-Accounts identified understated income in each year and that understatement was divided equally between husband and wife.
A T-Account is an indirect method of ascertaining the amount of taxable income earned during a period. According to the Commissioner, a T-Account allows the Commissioner to compare:
·the cash available at the beginning of a period plus cash received during the period; with
·cash expended during the period plus cash on hand at the end of that period (cash economy document from Australian Taxation Office (ATO)).
According to the Commissioner, if the ATO has been given full and accurate information, the two sides of the T-Account should balance. If the two sides do not balance, it is likely that there is undisclosed income.
The Commissioner also uses a technique referred to as an asset betterment statement to determine whether there has been undisclosed income. Under this technique the net worth of an entity or taxpayer at the end of each relevant year is compared with their net worth at the beginning of each of those years and an estimate of annual asset growth is obtained. Non-deductible expenditure (often in the form of estimates) is added to this estimate and the liabilities and exemptions are subtracted. A figure is then computed for total taxable income. The taxable income previously declared is then subtracted to leave a balance which is the outstanding taxable income.
Using the T-Account method, the auditor determined that both the husband and wife had understatements of taxable income for the income years 2002–2006. The Commissioner issued amended assessments to the wife on 17 December 2009 and to the husband on

22 December 2009. The Commissioner also issued notices of assessment and liability to pay penalty to both the husband and wife. The auditor also determined that the partnership had a substantial GST shortfall amount for the period between 1 July 2001 and 30 June 2006. The Commissioner issued notices of assessment and liability to pay penalty to the partnership on 15 December 2009.
The penalty assessments made by the Commissioner were on the grounds that the shortfall amount resulted from the taxpayers' recklessness. The Commissioner also found that the husband and wife had engaged in fraud and tax evasion for the income years 2002 to 2004. However, by the time this matter came on the hearing, the fraud allegation had been discontinued.
The hearing of this matter ran for three days, between 4 March 2013 and 6 March 2013. At the conclusion of the substantive hearing on 6 March 2013, I reserved my decision.
On 13 March 2013 the Tribunal received an e-mail attached to which was a letter from David Mond & Associates, certified practising accountants, who acted for the taxpayers. The letter was addressed to the ATO and in that letter, Mr Mond said:
The applicants intend to seek leave to introduce fresh evidence in light of remarks made by Senior Member Egon Fice at the hearing of the appeals on 4 – 6 March 2013.
Additional witnesses [the husband], Chris Klinkatsis and Stephen Schembri will be called.
On 25 March 2013 the Tribunal received further correspondence from David Mond & Associates. The letter requested that the Tribunal reopen the hearing to allow the applicants to call additional witnesses to provide further evidence in support of the applicants' contentions. In addition to the witnesses I have referred to in the 13 March 2013 letter, there was one further witness, an employee of David Mond & Associates. The letter also advised the Tribunal that David Mond & Associates had written to the Commissioner seeking consent to reopening the hearing but that the Commissioner refused that request.
The Tribunal listed this matter for a hearing on 8 May 2013 to determine the question whether the applicants should be permitted to reopen the hearing. In written submissions provided at that hearing, the applicants stated:
The Applicants seek to re-open the hearing on the issue of evasion in the 2002, 2003 and 2004 tax years in order to obtain evidence from two new witnesses.
The proposed additional witness list had now been reduced to two, the husband and

Mr Klinkatsis.
REASONS FOR SEEKING TO REOPEN HEARING
It should be apparent from the above introduction that the reasons why the applicants seek to reopen the hearing have altered since the 13 March 2013 letter. That is, in my opinion, of some significance.
The 13 March 2013 letter referred to my remarks made in the course of the hearing. While those remarks were not specified, given the additional witnesses that the applicants sought to have give evidence, I have searched the transcript in order to identify the remarks to which Mr Mond referred.
On the first day of the substantive hearing, 4 March 2013, immediately before the luncheon adjournment, following the conclusion of the evidence given by the wife, I asked Dr J Glover, who appeared for the applicants, whether the only remaining witness to be called by the applicants was Mr Mond. Dr Glover said that was correct. I then said:
And we don't have [the husband]. I notice we don't have a witness statement from him. I don't know if that’s significant or not but…
Dr Glover then said:
Well, I will get instructions if [the husband] could submit himself for cross-examination.
I responded:
Yes, I – well, I'm not saying he should be here. I’m – I was just looking for a witness statement and I couldn't see one.
Dr Glover said:
No, there isn't one, sir. He isn't very familiar with the English language.…
He has high blood pressure.…
I then told Dr Glover that it was up to the parties whether the husband was called.

Dr Glover said that the husband was in the hearing room. He said he was not hidden.

I told Dr Glover that I was not suggesting that the husband had been hidden, but that I was concerned about how many more witnesses were to be called and how much longer that would take. I was also aware that the Tribunal had been asked to provide an interpreter for the husband because of his lack of familiarity with the English language. I was aware that the interpreter was in the hearing room available to be called upon. The hearing then adjourned for lunch.
After the luncheon break, Mr Mond was called to give evidence. Mr Mond had prepared a witness statement and when Dr Glover sought to tender that statement in evidence,

Mr N Evans of counsel, who appeared on behalf of the Commissioner, objected. Mr Evans stated his objections in the following way:
I do have an objection, sir. The objections are twofold. Mr Mond's statement attempts to achieve two things; its opinion evidence and it does two things. It proffers an opinion about the audit; about the manner in which the assessment – the totals in the assessment were derived, so how they got to the – how the ATO auditor got to the numbers that form the basis of the assessment; that's the first thing, and in doing so it offers opinions about what are suggested as flaws in that process; that's the first thing.
The second this [sic] it proffers an opinion about the alternative taxable income and it does so through two means; first being by way of asset betterment statements and the second, and more recent, by way of alternative tier counts [sic – T-accounts]. Now, the objection is based on – the objection to each of those is for these reasons: the first is the opinion about the process and the apparent flaws in that process aren't relevant. The applicant has indicated they are not running an argument to say the assessments avoid [sic – are void]. They accepted the assessments are valid. So the question is are they excessive?
Now, that question is not answered by an opinion on the errors within the assessment. This is not one of those circumstances that I flagged in my opening where the error, in and of itself, explains the entire assessment. So that's the first objection, it's on relevance.
The second objection is more important and that's in relation to the proffering of the opinion on taxable income and the objection is that Mr Mond's opinion is based on assumptions of fact where there is no evidence; indeed none at all for quite a good deal of [a] number of the assumptions. If – and we're at the point now where the applicant has led its evidence; Mr Mond can't lead any evidence about the affairs of the applicants; he can only lead opinion evidence and, indeed, he's only attempting to lead opinion evidence, about what we have in front of us.
So if Mr Mond's opinion is based on assumptions where there is no evidence or they have not been proven then Mr Mond's opinion is technically inadmissible, but it's of no value to the tribunal.
Dr Glover then explained that Mr Mond's evidence was in the nature of expert testimony and that he had completed rival T-Accounts and also an asset betterment statement.

Mr Evans pointed out that his objection did not go to the qualifications of Mr Mond to give expert testimony but rather to the relevance of his evidence.
In the course of my subsequent discussion with Dr Glover, it became apparent to me that his intention was to prove, through Mr Mond, that the T-Accounts prepared by the auditor were incorrect. Dr Glover referred to the High Court of Australia decision in The Commissioner of Taxation for the Commonwealth of Australia v Dalco (1990) 168 CLR 614. He then said:
You see, there are two ways in which they’re proving that these assessments are excessive. The first way I've characterised is that Commissioner's errors. But what I'm pointing to is the fact that the Commissioner has not allowed that many of the unexplained deposits were applied to deductible expenditures.…
It's about the bottom line, it's – that's the way of proving it. Now if you look at Dalco's case and other cases they took [sic – talk] about the different options which are available to a taxpayer and how you prove an assessment is excessive; and one way that you can prove an assessment is excessive is to prove that it's made up of errors.
I then said:
There’s Gauci's case and there are others which say, no, you can't do that and I know there is a lot of reliance on Dalco, but I would be very cautious about going down the path you're going.
Dr Glover then explained that the second means by which the taxpayer intended to show that the assessments were excessive involved proving what the constituents of his or her income were. He said that was what Mr Mond was essentially doing in his affidavit. I responded by saying:
All right. I don't know how he can prove that as the accountant. He can't prove it as an expert and give an opinion about it, quite plainly I would have thought, because we have to work with real accounts. What we have to work with, what is the actual position.
Despite my caution to Dr Glover and my misgivings about the way in which he intended to proceed with Mr Mond's evidence, I admitted Mr Mond's witness statement and attachments into evidence and allowed his cross-examination to proceed.
In the course of his closing submissions, Dr Glover referred to a division of labour between the husband and wife in the business operated by the partnership. He said that the husband was in charge of production, sales and deliveries and the wife answered the telephone and attended to the paperwork. He then said that no adverse inference should be drawn from the fact that the husband did not give evidence because the wife was the person in charge of business records. When I suggested to Dr Glover that it would be reasonable to expect that the husband and wife spoke about the business, he suggested that they spoke in their native tongue. When I asked what the significance of that was, Dr Glover said the husband was unable to answer questions as to what he was told in English. He then said if the husband was put into the witness box and was asked questions in English, he could barely respond. At that point, I commented that because the husband had been there in the hearing room but had not gone into the witness box, I was certain that something was going to be said about that (by the Commissioner).
Dr Glover also said that the husband and wife implicitly relied on their accountant, Mr Klinkatsis. He then submitted that the explanation given by the husband and wife for why income may not have been disclosed to the Commissioner was that they were persons of limited comprehension of accounting and tax law. He submitted that they were persons who honestly and reasonably relied on their tax agent, Mr Klinkatsis. This is despite the fact that when Dr Glover said that the husband and wife relied on their accountant, and I asked him to confirm that he was their accountant and not a tax accountant, Dr Glover answered: Yes, he was their accountant. Dr Glover then said:
These people tried to do the right thing by the Australian [tax] system by retaining a Certified Practising Accountant and following his directions. They followed the directions implicitly. And yet that resulted in an under-statement.
I then pointed out to Dr Glover that the evidence seemed to indicate that the wife may not have told the accountant everything. Dr Glover responded by saying that the wife told the accountant everything that he requested to be told in relation to reporting the business’s incomings. I then said:
It would be good to have the accountant here, but nevertheless we don't.
Dr Glover then gave an explanation for why the accountant wasn't present. He said that the Commissioner breached confidence during the audit process because despite express instructions in a letter to the ATO on 26 March 2007 from the wife not to mention the details of her correspondence with the ATO to Mr Klinkatsis, that letter was passed on to him. Dr Glover submitted that the applicants were afraid that Mr Klinkatsis, if he were to give evidence before the Tribunal, would be concerned to vindicate his own position and to do so adversely to their interests.
When I asked Dr Glover whether that was a good reason for not calling Mr Klinkatsis to give evidence, he responded by stating that the applicants noted he had not been called by the respondent either. When I said to Dr Glover that the respondent did not have to prove anything, Dr Glover maintained that the reasons given for not calling him were sufficient. Although I pointed out to Dr Glover that he may be permitted to cross-examine Mr Klinkatsis were he called, Dr Glover resisted my suggestion and then referred to the rule in Jones v Dunkel (1959) 101 CLR 298 suggesting that I could not draw an adverse inference as a result of his absence.
In his closing submissions Dr Glover said that in proving that an assessment is excessive, he relied on what Justice Brennan said in Dalco. He quoted Brennan J where he said: The burden which rests on the taxpayer is to prove that the assessment is excessive and that burden is not necessarily discharged by showing that an error by the Commissioner in forming a judgement as to the amount of the assessment. Dr Glover then said: Which implicitly is saying, sir, that one of the ways is to show that the Commissioner has made an error. When I queried his interpretation of that, Dr Glover said:
Well I'll make a submission on that point. We note the fact that Brennan adverts to the possibility that the taxpayer can discharge the burden [by] showing an assessment to be excessive by pointing to errors of the Commissioner in forming the judgement. Because that's what he says. That was a decision with which Mason, Dean and Dawson agreed.
Although I attempted to explain to Dr Glover that understood in its context, what Brennan J said in Dalco did not indicate that simply disclosing that the Commissioner made an error, necessarily resulted in discharging the onus of proving that the assessment was excessive. Dr Glover disagreed.

In his closing submissions Mr Evans said that the evidence from the wife was that she inputted all of the receipts into a computer program called Cashflow Manager. He said that when he asked the wife whether she got the receipts from sales and put them all in she said: Yes, I put them all in. They all went in to Cashflow Manager. Mr Evans also pointed out that the wife's evidence was that she got the invoices and receipts from the husband and entered them into Cashflow Manager which was then passed on to the accountant who used those figures to produce the returns.
Mr Evans then referred to an assertion made by Dr Glover that recordkeeping had been inadequate. He said the undisputed evidence was that deposits exceeded sales. He also referred to assertions made about the fact that the business was not a cash business and that all receipts were deposited in the account. Mr Evans then said:
Well if that's right, and we don't have evidence on that, there is no evidence on that, and indeed the only person who could give evidence on that is [the husband] because he was the person responsible for making the sales. No evidence on that.
One of the issues before me was whether the husband occupied residential premises which were subsequently sold and whether, as a result of that sale, liability to capital gains tax arose. Mr Evans pointed out that there was no evidence from the husband to indicate that it was his principal place of residence. Without that, he submitted the Tribunal could not determine whether his capital gains tax assessment was excessive.
It was not disputed that in about 2007 the husband pleaded guilty to criminal charges regarding the theft of certain materials. The reason why this arose in this matter was that the taxpayers claimed a deduction for legal expenses incurred in defending those criminal charges. However the wife claimed that the husband pleaded guilty on the advice of his solicitor because they did not have the time or the resources to contest allegations regarding the criminal conduct while at the same time dealing with the ATO audit findings. In his closing submissions Mr Evans submitted that all that was before the Tribunal was an assertion regarding the conduct which led to the husband being charged. A copy of the charge had not been provided. Mr Evans submitted that the connection between the nature of the expense and the claimed deduction necessarily required evidence about the charge, about the conduct that led to the charge and how that in turn related to the income-producing activity. He then noted that the only evidence about this matter was from the wife even though it was the husband's conduct which resulted in the charge being laid. He submitted that in the absence of that evidence, the Tribunal was incapable of determining the connection.
On the question of whether there was evasion, Mr Evans submitted that there is a distinction between the intention of the wife and the husband. He pointed out that in Dr Glover's written submissions on evasion, he referred to the Commissioner treating the wife's intention as a relevant intention for tax evasion in relation to the partnership business, but that her intention was not the only intention relevant for the evasion question. The business was conducted as a partnership and according to the evidence, the only person responsible for managing the tax affairs was the wife. Mr Evans submitted that there were problems with that because it was the husband who made the sales and wrote the invoices. He said that was the first critical step regarding whether the applicants had properly disclosed their taxable income. Furthermore, central to the dispute between the Commissioner and the taxpayers was the difference between the recorded sales and the amount of cash which was taken in by the business. He submitted that the person who could give evidence about this and whose intention was relevant in these circumstances was the person who collected the cash and wrote invoices, in other words, the husband. Mr Evans then said:
Now, sir, the tribunal doesn't have any evidence from [the husband]. We know nothing of [the husband's] intention. We know nothing of [the husband's] knowledge. We know nothing of the process that he followed when he wrote invoices. We know nothing of the process of when he accepted receipts. We don't know any of that.
Mr Evans then submitted that the failure of the taxpayers to call the accountant was not a Jones v Dunkel point but rather a proof point. He said:
How do you establish that the conduct lead [sic] to the evasion without leading evidence from the accountant. How do we know what happened. How do we know what was said to the accountant. How do we know what information they were given. How do we know what questions were asked by the accountant. We don't know any of those things, sir. It's a proof point. You can't discharge a burden of saying there was no evasion because the account was responsible, without leading evidence to explain that connection.
Mr Evans also submitted that the evidence was insufficient to suggest that the accountant's conduct caused the avoidance. He then said:
Now, what the impugned conduct is, is that the taxpayers' tax agent, the accountant, didn't ask for the bank statements and didn't perform bank reconciliations. That's what the conduct is. That's it. That's it. Didn't ask for the bank statements. Now, you recall, sir, in cross-examination of Mr Mond, I asked a very simple question about where we would go for the information where there is a bank – the bank deposits exceed the sales, where would we go for that information. It took us a long time to get a very simple and logical response. And that is, you go to the taxpayer, you ask the taxpayer where does this money come from.
Mr Evans then submitted that the underreporting of income was not caused by the tax agent. He submitted that what caused the avoidance was not reporting all of the deposits. It was for the applicants to disclose the excess funds which caused the avoidance. It had nothing to do with the accountant's conduct. Mr Evans pointed out that it was feasible that an accountant could receive bank statements, identify there was a gap in the disclosed income and simply be given instructions that it related to other sources. Therefore, the impugned conduct, that is that there was no reconciliation of bank accounts, does not necessarily lead to the conclusion that it caused the avoidance. The avoidance, if there is any, is caused by not reporting the excess deposits. Mr Evans then submitted:
I indicated, sir, that it's open to the tribunal to infer that they were aware of the bank deposits and they were, therefore, aware that they were underreporting the sales. Now, if there is any evidence that can be led in any way to suggest otherwise, that evidence would come from [the husband] because it's [the husband] who is writing the invoice books, it’s [the husband] who is giving the receipts – who is giving the invoices to [the wife]. Now, sir, what follows from that is, that the failure of the applicants to call [the husband] is a matter that favours the tribunal drawing that inference. That's what Jones v Dunkel stands for, that’s the adverse inference.
Following that submission, I noted that the circumstances in this case, as in Jones v Dunkel, were that the witness (the husband) had been sitting in the hearing room for the three days of the hearing but had not been called to give evidence. Mr Evans submitted that the applicants had failed to discharge their burden of proving that the avoidance of tax was not caused by evasion. He submitted that in the absence of the husband's evidence it would be unfair and inappropriate for the Tribunal to accept the wife's hearsay evidence about the husband's conduct because the Commissioner had been deprived of the opportunity to test that evidence.
In reply to the submissions made by Mr Evans, Dr Glover said:
We except, as I said, the burden is that the applicants have to prove their taxable incomes. Now, the applicants have attempted to discharge that in a bona fide way by proving through T-Accounts and an asset betterment statement method, which has been approved by the courts on many occasions, like AAT case 4072.
I then asked Dr Glover why the applicants needed to rely on those methods. He responded by saying that's the way of proving what taxable incomes are. I then queried Dr Glover about the use of those methods given that they were used by the Commissioner to estimate income and expenditure, whereas the applicants were not required to do that, but were simply required to provide evidence about where the claimed income came from. Dr Glover submitted that the applicants had no idea what the actual incomings were. He said that the wife did the best job she could to put down what she thought was coming in. I explained to Dr Glover that I had some difficulty with his argument that the applicants were entitled to rely on the T-Accounts. That was because, as the only partners in the partnership, they knew what their income was and the wife recorded that in the accounting software package provided to her.
On the issue of evasion, Dr Glover submitted that the applicants would have paid the right tax if it had been indicated to them what the right tax was. This, as I understood it, was a reference to the failure of the accountant not having explained that he required the bank accounts for the purposes of preparing financial accounts for the partnership.
Dr Glover also addressed the question raised by Mr Evans regarding the failure of the husband to give evidence. He said:
And we were asked again why was [the husband] not called; that's [the husband] who is behind me now. Now, the tribunal isn't bound by legalities and debating points. The substantial question is, well, why wasn't [the husband] called, and I indicated what the answer was. [The husband] is old, [the husband] is sick, [the husband] doesn't speak English very well. [The husband] didn't have first-hand knowledge.
I told Dr Glover that the Tribunal had an interpreter available for the husband for three days. Dr Glover then said:
Well, the applicants for their own reasons have decided that there wouldn't have been anything useful.
I asked Dr Glover to confirm that statement and he said that no inference could be drawn from that. He added:
Because they have supplied a sufficient reason. [The husband] has a heart condition, he has high blood pressure. Should [the wife] be required to watch her husband virtually dying in the witness box of anxiety.…
So the substantial question is, would his evidence have assisted and the answer is no. Is it being hidden from the tribunal? Well, being serious, no. The next question is about the accountant, would the accountant's evidence have assisted and, again, the answer is no, but there is a further reason why the accountant was not called, which I outlined to you, sir, about the mistake made by the taxation office, of which there can be no denying, which is a sufficient reason.
It should be apparent from the brief extracts from the transcript to which I have referred above that the applicants had chosen to discharge the burden of proving that the Commissioner's assessment was excessive, not by bringing forward evidence to substantiate their true taxable income, but rather by having Mr Mond prepare T-Accounts and a betterment statement in opposition to the Commissioner.
The Commissioner, having conducted an audit, arrived at the conclusion that the taxpayers had failed to disclose all of their taxable income in the income years in question. The Commissioner then issued assessments for those income years pursuant to s. 167 of the Income Tax Assessment Act 1936 (ITAA 1936) as he was not satisfied with the returns furnished by the taxpayers. The Commissioner based his assessments on the T-Accounts prepared by the auditor.
It appears that the taxpayers acknowledged that during the income years in question they had received what was described by the wife as occasional cash contributions from external sources, or from cash we had previously saved. However, other than the wife giving an explanation for the source of those monies, the applicants did not put on any evidence to substantiate the claims made by the wife. Not all of these monies were deposited in bank accounts and the wife gave evidence that she kept approximately $120,000 in cash in a cupboard at home.
Given the state of the evidence put on by the taxpayers, and the fact that they deliberately refrained from calling the husband to give evidence despite his presence in the hearing room for the three days of the hearing; and the fact that the Tribunal had retained an interpreter who was also present for those three days, I expressed some concern to Dr Glover following Mr Evans' objection to the admission of Mr Mond's statement and attachments. This occurred on the first day of the hearing.
In the course of his closing submissions on the third day of the hearing, Dr Glover submitted that the taxpayers had retained a Certified Practising Accountant (Mr Klinkatsis) and that they followed his directions implicitly. Despite that, it resulted in an understatement of income. Dr Glover also submitted that the taxpayers gave Mr Klinkatsis the information which he sought and that he told the taxpayers he didn't need the bank passbooks which were offered to him. That submission was made despite the fact that Mr Klinkatsis had not been called give evidence. I explained to Dr Glover that might create a problem.
In his closing submissions Dr Glover then went on to explain that in proving that the assessment was excessive, the taxpayers relied on what Brennan J said in Dalco's case. I have set out above [25] what Dr Glover said. Dr Glover did not refer to this statement made by Brennan J at 621:
After all, the purpose of the procedure of assessment, objection and appeal or review is to ascertain the true tax liability of the taxpayer under the substantive provisions of the Act.
I attempted to explain to Dr Glover that where Brennan J used the expression not necessarily, I did not understand that to mean that his Honour was indicating that the burden could be discharged simply by demonstrating an error by the Commissioner. Dr Glover disagreed. The problem with Dr Glover's understanding of what Brennan J said is that it is taken out of context. His Honour explained, at 625:
If this were a case where all the material facts were known and the amount of the taxable income depended on the legal complexion of those facts, the taxpayer would succeed upon establishing that the Commissioner erroneously included in the assessed taxable income an amount which, on those facts, ought not to have been included. But where, as here, the taxpayer has not proved that his actual taxable income is less than the amount assessed, the court does not know all the material facts and it cannot find that the amount assessed is wrong. A taxpayer who shows on the facts that are known a mere error by the Commissioner in assessing the amount of the taxpayers taxable income does not show that his objection should have been allowed or that the appeal against the assessment must be allowed.
It appears to me that it was the comments I made about the lack of evidence regarding the true assessable income of the taxpayers; the reliance upon the accountant who had not given evidence; the lack of evidence from the lawyers who acted on behalf of the husband in the criminal proceedings; and the way in which the taxpayers proceeded by having Mr Mond construct T-Accounts and a betterment statement to show that the Commissioner's T-Accounts must be incorrect; coupled with Dr Glover's understanding of what Brennan J said in Dalco's case, which led to the statement made in the 13 March 2013 e-mail to which was attached the letter from Mr Mond.
The letter of 25 March 2013 again requested that the Tribunal reopen the hearing so that further witnesses could be called to provide evidence in support of the taxpayers' contentions and suggested one further witness, an employee of David Mond & Associates. I am not aware of the evidence it was proposed to elicit from the employee. This request seemed to simply be an extension of the first request to reopen the hearing.
However, on the day on which the Tribunal listed this matter for hearing of the request to reopen the substantive hearing, it appears the applicants' reason for that request had substantially changed. The request now only related to the issue of evasion and that the husband and Mr Klinkatsis be permitted to give evidence.
In written submissions tendered on the hearing of this application, Dr Glover said that the husband would give evidence of:
·how the business operations were run;
·how the division of labour was divided between the partners and what information was shared;
·dealings with business customers and maintenance of business records; and
·dealings with Mr Klinkatsis.
Despite what Dr Glover said, I asked him whether a witness statement for the husband had been prepared. He said it had not.
Dr Glover also referred to a number of closing submissions made by Mr Evans including:
·assertions about not being a cash business;
·the only person who could give evidence about that is the husband who was responsible for making the sales;
·there were only two paragraphs in the wife's witness statement dealing with evidence about excess funds and reference to 3 sources of receipts;
·where did the excess cash on hand come from;
·who is the person whose intention is relevant – it's the person who collects the cash and writes invoices – the husband and the Tribunal knows nothing of the husband's intention – nothing of his knowledge and nothing of the process he followed when he wrote the invoices;
·it is reasonable for the Tribunal to infer that the husband and wife were aware of bank deposits and were aware of underreporting sales – any evidence to the contrary would come from the husband – failure of the applicants to call the husband is a matter which favours the Tribunal drawing the inference – that's what Jones v Dunkel stands for;
·given the inferences which are available from the evidence, the applicants have failed to discharge the burden that there was no evasion; and
·it would be unfair and inappropriate for the Tribunal to accept the wife's hearsay evidence about the husband's conduct because the Commissioner has been deprived of the opportunity to test the evidence.
As for the calling of Mr Klinkatsis to give evidence, Dr Glover referred to these submissions made by Mr Evans, and a statement by the Tribunal:
·was it evasion that caused the avoidance – the applicant’s submitted that the avoidance was caused by the accountant – that doesn't stack up – whether it's the accountant’s conduct that caused the avoidance – it's the accountant and lack of evidence from the accountant;
·it's a proof point – how do you establish that the conduct led to the evasion without leading evidence from the accountant – how do we know what happened – how do we know what was said to the accountant – how do we know what information they were given – how do we know what questions were asked by the accountant – we don't know any of those things – you can't discharge a burden of saying there was no evasion because the accountant was responsible, without leading evidence to explain that connection;
·it's no answer to say that the accountant's interests conflict – the accountant's records could have been subpoenaed – that could be documentary evidence and matters could be put in cross-examination; and
·on the issue of calling a witness who is hostile – it can assist the Tribunal.

Before examining in some detail the law which is relevant in cases where a party seeks to reopen a hearing prior to judgement or a decision being handed down, I should briefly make a few observations about the claimed bases for reopening the hearing.
Not one of the matters to which I have referred in paragraph [51] goes specifically to the evasion point. Those matters deal with the way in which the business was operated and the husband's knowledge about that. It also goes to the husband's dealings with Mr Klinkatsis.
Mr Evans' closing submissions referred to by Dr Glover are not all about evasion. In the first four points I have referred to above [53], Mr Evans was dealing with the unexplained income. The fifth point deals with intention and is on the evasion point. The sixth point deals with the Jones v Dunkel inference which he said should be drawn from the husband's failure to give evidence. The inference referred to by Mr Evans was the underreporting of sales. It does not go to intention and evasion. The seventh point was that the applicants failed to discharge the burden of proving there was no evasion. The final point is simply about the wife's hearsay evidence about the husband's conduct and the fact that the Commissioner did not have the opportunity to test the hearsay evidence.
The first two points dealing with the evidence of Mr Klinkatsis [54] deal obliquely with the evasion point by attempting to shift the blame on to the accountant. The other points deal with the fact that the accountant was likely to be hostile and it was uncertain as to what his response might be to the allegations made against him.
In my opinion, the reasons Dr Glover has put forward for reopening the substantive hearing have little to do with the evasion but rather disclose a belated attempt to shore up the applicants' evidence regarding the true assessable income derived by the partnership. It is clear from the evidence that Dr Glover, on the instructions of the applicants, set out to discharge the burden of proof by proving through T-Accounts and an asset betterment statement their correct taxable income. However, by the time it came to closing submissions, it was undoubtedly apparent to Dr Glover that the methodology chosen by the applicants to prove that the Commissioner's assessment was excessive had run into some heavy weather in the form of extensive critical cross-examination of Mr Mond by Mr Evans. In my opinion, this is the true reason why the applicants now wish to reopen the substantive hearing and call the husband and Mr Klinkatsis, the accountant. The question for me is whether the Tribunal should exercise its discretion to allow that to happen. That discretion is not a large, as suggested by Dr Glover, but must be exercised in accordance with the law.
THE TRIBUNAL'S DISCRETION
Dr Glover submitted that the Tribunal had and unfettered discretion to permit the introduction of new evidence when administratively reviewing assessment decisions made by the Commissioner. He cited Brennan J's decision in Bushell v Repatriation Commission (1992) 175 CLR 408. When dealing with s. 120 of the Veterans' Entitlements Act 1986, which deals with the standard of satisfaction to which the administrative decision-maker must obtain in finding the relevant facts, his Honour said, at 424 – 425:
Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the AAT may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.
In the course of his oral submissions, I asked Dr Glover whether there was a difference in matters before the Tribunal where no onus of proof applied and where an applicant had the burden of discharging the onus of proof. That was because Bushell's case was concerned with the Veterans’ Entitlements Act which does not contain any provisions dealing with onus of proof while the Taxation Administration Act 1953 (the Administration Act) does. As I understood Dr Glover's response, he said it did not affect the way in which the Tribunal exercised its statutory functions, and he referred to the fact that its proceedings were inquisitorial. With respect to Dr Glover, I disagree. This is despite what the Chief Justice of the High Court of Australia said in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 of May 2013), when dealing with a Migration Review Tribunal (MRT) decision.
His Honour said, at [10]:
It is well established that the reviews that both the MRT and the Refugee Review Tribunal ("the RRT") undertake (both tribunals operating under similar legislative schemes) are non-adversarial and that they involve no contradictor nor the joinder of any issue [23]. The review function of tribunals created by the Act is sometimes called "inquisitorial" [24]. That designation is a characterisation of their function which distinguishes it from adversarial proceedings [25].… Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate [27]. There are similarities to the kind of review provided by the Administrative Appeals Tribunal ("the AAT"), described by Brennan J in Bushell v Repatriation Commission [28] as:
"an administrative decision maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it."
As for the AAT, so too for the MRT and the RRT, the onus of proof relevant in judicial fact-finding has no part to play in administrative proceedings [29]. There being no party to a review adverse to the applicant, no question of prejudice to a party other than the applicant can arise when the applicant asks the MRT to adjourn a review to enable additional information to be provided to the MRT. Nor can there be any prejudice to the tribunal although it is entitled to have regard to the legislative objectives including timeliness in its processes.
The problem with what the Chief Justice said is that not all of the matters which come before the Tribunal fall into the same category as Repatriation Commission cases. The best example of course is taxation matters. In fact Woodward J as a member of the Full Court of the Federal Court of Australia in McDonald v Director-General of Social Security (1984) 1 FCR 354 said, at 357:
It is possible to imagine a case where the act which the administrator is applying places a requirement or onus on one or other of the parties to an issue to establish a particular state of facts on which the administrator's decision would be based. If that were so, the same requirement or onus would apply before the AAT.
Prior to its amendment in 2009, s. 14ZZ of the Administration Act provided for review of the Commissioner's objection decision in the following terms:
If the person is dissatisfied with the Commissioner's objection decision (including a decision under paragraph 14ZY(1A)(b) to make a different private ruling) the person may:
(a)if the decision is both a reviewable objection decision and an appealable objection decision – either:
(i) apply to the Tribunal for review of the decision; or
(ii) appeal to the Federal Court against the decision; or
(b)if the decision is a reviewable objection decision (other than an appealable objection decision) – apply to the Tribunal for review of the decision; or
(c)if the decision is an appealable objection decision (other than a reviewable objection decision) – appeal to the Federal Court against the decision.
The expressions appealable objection decision and reviewable objection decision were defined in Division 2 of the Administration Act. Both expressions referred to an objection decision made by the Commissioner and the only difference between the two was the exclusions which apply to each. A reviewable objection decision excluded an ineligible income tax remission decision and an ineligible sales tax remission decision. An appealable objection decision excluded a decision made on a taxation objection under s. 63 of the Pay-roll Tax (Territories) Assessment Act 1971; s. 14E of the Administration Act; and s. 43A of the Wool Tax (Administration) Act 1964. Otherwise, they were identical and objection decisions made by the Commissioner which fell outside the exclusions referred to above could be regarded as being both a reviewable objection decision and an appealable objection decision. In those circumstances, a taxpayer could seek review either by this Tribunal or by the Federal Court. The question which might have then arisen was whether the procedures adopted in the Federal Court differed from those in the Tribunal.
Following amendments to the Administration Act, it is now clear (if that was not already the case) that a taxpayer generally has a choice whether to seek review by the Tribunal or appeal to the Federal Court. The classification of objection decisions as either reviewable objection decisions or appealable objection decisions was removed. Instead, s. 14ZQ simply defines the expression reviewable objection decision in the following way:
reviewable objection decision means an objection decision that is not an ineligible income tax remission decision.
Section 14ZZ now provides:
(1) If the person is dissatisfied with the Commissioner’s objection decision (including a decision under paragraph 14ZY(1A)(b) to make a different private ruling), the person may:
(a) if the decision is a reviewable objection decision—either:
(i) apply to the Tribunal for review of the decision; or
(ii) appeal to the Federal Court against the decision; or
(b) otherwise—appeal to the Federal Court against the decision.
Division 4 of the Administration Act deals with the Tribunal’s review of objection decisions while Division 5 deals with Federal Court appeals against objection decisions. As far as the Tribunal is concerned, s. 14ZZK sets out the grounds of objection and burden of proof. There is a corresponding provision where the taxpayer appeals against an objection decision. That is found in s. 14ZZO. These provisions are almost identical except where s. 14ZZK refers to the applicant and the Tribunal, s. 14ZZO refers to the appellant and the Court. Section 14ZZK provides:
On an application for review of a reviewable objection decision:
(a)the applicant is, unless the Tribunal orders otherwise, limited to the grounds stated in the taxation objection to which the decision relates; and
(b)the applicant has the burden of proving that:
(i)if the taxation decision concerned is an assessment (other than a franking assessment) – the assessment is excessive; or
(ii)if the taxation decision concerned is a franking assessment – the assessment is incorrect; or
(iii)in any other case – the taxation decision concerned should not have been made or should have been made differently.
The other difference with s. 14ZZO is the introduction which states:
In proceedings on an appeal under section 14ZZ to a court against an objection decision:…
The points to note about these provisions are:
(a)whether the taxpayer seeks review by the Tribunal or an appeal to the Court, he or she is limited to the grounds stated in the taxation objection to which the decision relates unless the Tribunal or the Court orders otherwise; and
(b)the taxpayer has the burden of proving that the assessment is excessive or that the objection decision should not have been made or should have been made differently.
I should also point out that the Federal Court Rules 2011 dealing with taxation appeals (Part 33) make it clear that neither the appellant nor respondent need file pleadings. The Commissioner, unless an appeal relates to a private ruling, must file with the court, amongst other documents, a statement referred to as the appeal statement setting out the Commissioner's contentions and facts and issues in the appeal or an appeal affidavit stating the grounds for seeking an order at the first directions hearing dispensing with filing an appeal statement, and the facts and issues as the Commissioner perceives them (Rule 33.03).
It should be apparent that the procedure before a Court on an appealable objection decision is identical to the procedure on review by the Tribunal save for the fact that the rules of evidence bind the parties before the Court. While no practitioner would so much as suggest that the Court's procedure in hearing an appeal from an objection decision made by the Commissioner is inquisitorial in nature, it raises serious questions as to why practitioners appear to be consistently of the view that it is so before the Tribunal. For my part, given that an applicant bears a legal onus of proving that an assessment made by the Commissioner is excessive, I do not understand how the Tribunal can act in an inquisitorial manner and at the same time appear to be impartial. Or, for that matter, why it should do so. Furthermore, it seems to me that if the Tribunal were to do so, it would be at serious risk of making decisions in identical matters which were inconsistent with those made by a Court. That would of course be intolerable.
In fact, I have come across one Federal Court decision which appears to support my view. The decision of Foster J in Eldridge v Federal Commissioner of Taxation (1990) 21 ATR 897 is enlightening. This case involved three former officers of the ATO who became involved in a money making scheme. The Commissioner took the view that all three had derived income from those activities which had not been disclosed for taxation purposes. The Commissioner issued default assessments pursuant to s. 167 of ITAA 1936, including one third of the proceeds of the scheme to the taxpayer. The taxpayer disputed his liability under the amended assessment asserting he had in fact received nothing from the activities of the claimed scheme. On appeal from the decision of this Tribunal, the Court was required to determine questions related to and connected with the rejection by the Tribunal of the tender on behalf of the applicant investigative reports provided to the Commissioner. His Honour referred to the applicant's submissions and said, at 902:
It was submitted that, in contradistinction to the function of a court dealing with an appeal in respect of the disallowance of a taxpayer's objection, the Tribunal stood in the shoes of the Commissioner and was obliged, in the proper fulfilment of that role, to receive in evidence any material which had been before the Commissioner.
By the documents sought to be tendered in evidence, Mr Eldridge attempted to show before the Tribunal that in making his default assessment, the Commissioner did not take into account all of his allowable deductions. Therefore, it was argued, the Commissioner did not properly exercise judgement in making the default assessment and therefore the assessment under ITAA 1936 was bad.
The applicant submitted that the Tribunal erred in law when it prevented the reception of the evidence because the evidence was necessary for it to fulfil its proper function of standing in the shoes of the Commissioner and that by rejecting it, it both misconceived its role under the Administrative Appeals Tribunal Act 1975 (AAT Act) and prevented itself from fulfilling that role. The applicant also submitted that the reception of the evidence would have inevitably demonstrated that the Commissioner acted capriciously and arbitrarily and thereby failed to make any assessment in law. His Honour said, at 907:
I have difficulty, at the outset, in seeing how it can be said that the question of whether the Commissioner has acted capriciously or arbitrarily can be an issue before the Tribunal except in a most limited way. As will be discussed hereafter, the Tribunal, pursuant to s 43 of the AAT Act, does exercise the functions of the Commissioner in relation to the making of an assessment, subject to such constraints as are imposed by s 177(1) and 190(2) of the Act. The matter of the assessment comes before it afresh. At the end of the day what it does is make an assessment itself.
In determining the basis upon which the Tribunal rejected the applicant's case, his Honour said, at 912:
It was rejected fairly and squarely upon evidence given before the Tribunal itself through documentary exhibits and through witnesses who were examined, cross-examined and re-examined in the ordinary way.
It is abundantly clear, of course, that even though the Tribunal does over again the work of the Commissioner, it does it in a significantly different way. Although it could be said to be part of an administrative hierarchy, its functions partake far more of the court than of the office desk.
It is clearly not cast in the role of the inquisitor (my emphasis). Although it does not act within the confines of formal pleadings, it is constrained in its inquiries and deliberations by the ambit of the taxpayer's objections. Although it is not bound by the rules of evidence [s 33(1)(c)] in reaching its decision it must act upon the evidence which is placed before it.
In my opinion, what Foster J said in Eldridge's case has even more significance since the introduction of ss 14ZZ, 14ZZK and 14ZZO in the Administration Act. A taxpayer has a choice of going to the Federal Court on appeal by way of a hearing de novo if dissatisfied with the Commissioner's objection decision, or by seeking a review of that decision in the Tribunal, which is also a hearing de novo. Other than the fact that the Tribunal is not bound by the rules of evidence (s.33(1)(c) of the AAT Act), there should be no significant difference in the conduct of the hearing in either forum.
Although I have only referred to difficulties which may be encountered by the Tribunal acting in an inquisitorial way in taxation matters by reference to an applicant, the same of course must be said about the respondent. It is clear that the Commissioner carries no burden of proving anything in a taxation matter. As Gibbs J pointed out in McCormack v The Commissioner of Taxation of the Commonwealth of Australia (1979) 143 CLR 284, at 303:
If a taxpayer can succeed, simply because there is no evidence from which it can be concluded that the relevant purpose existed, that must mean that the burden of proving the existence of that purpose lies on the Commissioner. That in my respectful opinion would be to invert the onus of proof.
His Honour then went on to cite with the approval the dissenting judgement of Mason J in Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81 where his Honour said, at 89-90:
The Act does not place any onus on the Commissioner to show that the assessments were correctly made. Nor is there any statutory requirement that the assessments should be sustained or supported by evidence. The implication of such a requirement would be inconsistent with s. 190 (b) for it is a consequence of that provision that unless the appellant shows by evidence that the assessment is incorrect, it will prevail.…
It is clear from what Mason J said that it is not the role of the Tribunal to make its own enquiries into the grounds for the Commissioner making his assessment. That is impermissible.
A good example of the similarity in procedure between a Court and the Tribunal may be found in the Federal Court decision (Jessup J) Gashi v Commissioner of Taxation [2012] FCA 638. The taxpayer in that case had been assessed under s. 167 of ITAA 1936. An appeal was brought under s. 14ZZ of the Administration Act following the objection decision made by the Commissioner. In making the default assessment, the Commissioner utilised the asset betterment method of estimating the combined income of Mr and Mrs Gashi. His Honour conducted a review of the merits of the case, referring to the evidence and making findings of fact. His Honour then referred to the onus which the taxpayer was required to discharge pursuant to s. 14ZZO of the Administration Act and found that the taxpayer had fallen well short of establishing the actual amount of his assessable income in the years in question. This is indistinguishable from the procedure undertaken by the Tribunal. As Foster J said in Eldridge, the Tribunal is clearly not cast in the role of an inquisitor when undertaking a review pursuant to s. 14ZZ of the Administration Act.

Dr Glover submitted that the criteria used by the courts to receive fresh evidence after a trial had concluded were not relevant to the Tribunal. Dr Glover referred me to the Tribunal decision in Kowalski and Military Rehabilitation and Compensation Commission [2007] AATA 1988 and in particular what the Tribunal said at [26]:
If before it makes its decision the AAT becomes aware of material which might impact on what might be the correct or preferable decision, it should ordinarily have regard to that material unless it seems to me there is good reason demonstrated not to.
However Dr Glover omitted to point out to me what the Tribunal said about the Court's rules of procedure and evidence and their application to the Tribunal. In answering a submission made regarding whether the Court's rules of procedure and evidence should be applied in the AAT, the Tribunal said that submission was contradicted by the provisions set out in s. 33 (1)(c) of the AAT Act. However, the Tribunal said:
Whilst there is no doubt that the rules that apply in the courts may be useful in providing a guide to the procedure to be adopted, those rules cannot dictate the procedure in an administrative tribunal where "the notion of onus of proof… has no part to play…": Bushell's Case 175 CLR 408 at 425.
The Tribunal in that case was not saying that the Court's rules of procedure were not relevant, but in fact that they may provide a useful guide. Plainly, the Tribunal is not bound by such rules. I should also point out that Kowalski's case was concerned with the Safety Rehabilitation and Compensation Act 1988 which contains no onus of proof provisions. In my opinion, that fact is significant as I have attempted to explain above.
Dr Glover submitted that for the Tribunal to exercise its discretion to allow the hearing to be reopened, the applicants must show that the evidence given by the proposed further witnesses would:
(a)impact on the correct or preferable decision;
(b)not cause irremediable prejudice to the respondent; and
(c)was not withheld from the original hearing in order to obtain a forensic advantage.
In response, Mr Evans submitted that the applicant's should not be permitted to reopen the hearing and to allow further witnesses to be called. That was because the applicants made a deliberate decision not to call the proposed witnesses during the hearing. He submitted the applicants were afforded every reasonable opportunity to present their case and that the public interest dictated that the application should be denied.
Mr Evans also submitted that the relevant factors which the Tribunal needs to weigh in exercising its discretion to allow a hearing to be reopened are:
(a)whether applicants have been given a reasonable opportunity to present their case (s. 39 of the AAT Act);
(b)whether the reopening of the hearing is consistent with:
(i)the Tribunal's obligation to conduct proceedings with as much expedition as a proper consideration of the matters before the Tribunal permits (s. 33 (1)(b) of the AAT Act); and
(ii)the Tribunal's overriding obligation to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick within the meaning of s. 2A of the AAT Act;
(c)the public interest that there should be finality in litigation including the effect of delay on the parties and other applicants seeking review before the Tribunal and to the appropriate use of public resources;
(d)whether the applicants made a deliberate choice not to adduce evidence "to obtain some forensic advantage";
(e)whether the application falls within one of the four classes of cases recognised by the courts when considering leave to reopen being:
(i)where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available;
(ii)where there has been inadvertent error;
(iii)where there has been a mistake in apprehension of the facts; and
(iv)where there has been a mistake in apprehension of the law;
(f)whether the boundaries of the reopened issues "would be hard to define and difficult to protect".
Mr Evans also submitted that the Tribunal ought not exercise its discretion to reopen the hearing unless the applicants provide an explanation as to why they did not call the proposed witnesses at the hearing.
Impact on the correct or preferable decision
Dealing first with Dr Glover's submission that the evidence given by the proposed additional witnesses (the husband and Mr Klinkatsis) would impact on the correct or preferable decision, the written submissions tendered by Dr Glover on the reopening of the applicants' case appear to be in stark contrast to the closing submissions he made in reply in the course of the substantive hearing. In his written submissions, Dr Glover said:
[the husband] will give evidence about dealings with business customers and his maintenance of business records. He will also provide evidence on his dealings with Mr Chris Klinkatsis.
By way of contrast, in his closing submissions at the substantive hearing, Dr Glover said:
And we were asked again why was [the husband] not called; that's [the husband] who is behind me now. Now, the Tribunal isn't bound by legalities and debating points. The substantial question is, well, why wasn't [the husband] called, and I indicated what the answer was. [The husband] is old, [the husband] is sick, [the husband] doesn't speak English very well. [The husband] didn't have first-hand knowledge.… [The husband] has a heart condition, he has high blood pressure. Should [the wife] be required to watch husband virtually dying in the witness box of anxiety.… So the substantial question is, would his evidence have assisted and the answer is no. Is it being hidden from the Tribunal? Well, being serious, no.
As for Mr Klinkatsis, in his written submissions for the purposes of the application to reopen the applicants' case, Dr Glover submitted that he would be asked about the partnership bank accounts and whether he asked to see the reconciled bank statements with other data to provide annual financial and tax statements. He could also provide evidence of the husband and wife's levels of tax and business knowledge during the relevant years.
In his closing submissions on the last day of the hearing Dr Glover said this about Mr Klinkatsis:
The next question is about the accountant, would the accountant's evidence have assisted and, again, the answer is no, but there is a further reason why the accountant wasn't called, which I outlined to you, sir, about the mistake made by the taxation office, of which there can be no denying, which is a sufficient reason.
Dealing first with Mr Klinkatsis, I have difficulty in understanding what useful further evidence he could give at a reopened hearing. The wife's evidence was that after making sales, the husband would bring back the invoices and she would enter the details into a computer program described as Cashflow Manager. The information was downloaded onto a floppy disk and given to Mr Klinkatsis. She said that she did the same with receipts for expenditure. She explained that at times, if unsure whether expenditure was deductible, she would send Mr Klinkatsis items in a separate envelope questioning those items of expenditure. In her witness statement the wife testified that her husband had offered Mr Klinkatsis a passbook from a bank account which Mr Klinkatsis declined. According to the wife, the passbook bank account was where monies paid to the partnership were deposited.
In a letter dated 29 March 2007 from Mr Klinkatsis to the wife, which was attached to the wife's witness statement, Mr Klinkatsis said that he prepared the partnership's quarterly business activity statements and annual tax returns from the information given to him by the wife which was recorded on the software Cashflow Manager. Furthermore, Mr Klinkatsis said in his letter that the income reported in the trial balance obtained from Cashflow Manager; a general ledger listing; and an extract from the financial accounts was exactly the same figure as was provided to him by the wife. He also said: The income and expenses reported in Cashflow Manager had been inputted by yourself and being given to us as figures to be processed in your income tax return. Mr Klinkatsis also said that he had never been given any bank statements or passbooks for the purposes of conducting his work. He said that he first saw some of those documents in October 2006 when the solicitor was using them in the criminal trial of the husband.
It appears to me that the case made by the applicants included the fact that they relied heavily on Mr Klinkatsis to deal with their tax matters. While I readily accept that may have been so, it does not in any way indicate that Mr Klinkatsis was privy to a number of other deposits referred to by the wife in her witness statement which had nothing whatsoever to do with the business of the partnership (some $145,000) (see: paragraph 38). In fact, logically, there was no reason for the applicants to disclose those receipts to Mr Klinkatsis, unless of course, they were in the nature of assessable income. However, the wife's testimony was that they were not. It should be clear that Mr Klinkatsis could not give any evidence regarding the character of undisclosed money which was deposited in the applicants' bank account.
Dr Glover also referred to comments which I made in his closing submissions regarding the reasons given by the applicants for not calling Mr Klinkatsis. In essence, they believed he would be a hostile witness. The reason for my comment was that if the applicants were relying on proving that they had declared all of their income from the business of the partnership by full disclosure to Mr Klinkatsis, and that for some reason known only to himself, Mr Klinkatsis had failed to include as income other monies the wife said were received in the relevant income years, then, quite plainly, Mr Klinkatsis should have been given the opportunity to defend himself. However, having now reviewed the evidence given in the course of the substantive hearing, I cannot see how his presence would assist me in coming to the correct decision. From the evidence it is clear that it was the wife who provided all of the partnership financial information to Mr Klinkatsis. She did not disclose receipt of other monies, approximately $145,000, which appeared to have been received and kept in cash at home. Even if Mr Klinkatsis had access to bank statements or the passbook, he would have been none the wiser. I have no reason to doubt that the wife would have told him about the source of those monies as she has set out in her witness statement which she said on oath was true and correct. Therefore, I find that reopening the hearing for the purpose of calling Mr Klinkatsis to give evidence would not impact on or assist me in coming to the correct decision.
In respect of the husband, the first concern I have is the issue of his health raised by Dr Glover. At the substantive hearing, I had no evidence whatsoever regarding the husband's health despite Dr Glover giving that evidence from the bar table. During the three day substantive hearing the husband appeared to be comfortable sitting in the hearing room and listening to the proceedings. It was because of these observations that I considered Dr Glover may have somewhat overdramatised the husband’s medical condition but given the seriousness of what was said by Dr Glover, I would nevertheless require a medical report from the husband’s general practitioner indicating his fitness to undergo examination and cross-examination. Dr Glover did not produce any such medical report at the hearing of this application nor did he produce any medical report regarding the husband's state of health. Despite that, I assume Dr Glover is now of the opinion that, for unexplained reasons, the husband is now fit to attend a hearing and be examined and cross-examined.
The second concern which I have is related to the integrity of the evidence which the husband, if called as a witness, would give. That is because he has now had the opportunity to discuss in detail the evidence given by his wife and Mr Mond. I mean no disrespect to the husband in saying so however, logically, it is likely that the evidence including the answers given in cross-examination have now been discussed at length, possibly even with the applicants' legal and or accounting advisers. This is likely to lead to some corruption of the evidence which he is likely to give should he be called. In my opinion, he should not be put in that position and, in any event, his evidence is unlikely to clarify the current position, but rather, compound it.
Although in his written submissions Dr Glover indicated that the husband could give evidence about where the cash on hand came from, we have already had that evidence from the wife. Simply repeating that evidence will not assist the applicants.
As to Dr Glover's submissions regarding the husband's intention in relation to the evasion issue, it would be extraordinary if the husband were to admit he intended to evade the payment of tax. I have no reason to doubt that he will deny that was the case. In cases such as this, the intention is usually found by inference, having regard to all the objective evidentiary material.
As for drawing the Jones v Dunkel adverse inference for the failure of the husband to give evidence, while that may be open to the Tribunal (I have not yet determined whether it is), it simply permits an inference that the untendered evidence would not help the party who failed to tender it (see Cross on Evidence, 9th Edition, JD Heydon, 2013, at [1215]). According to Cross on Evidence, the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence or to convert conjecture and suspicion into inference.
Regarding the wife's hearsay evidence about the husband's conduct, because the Tribunal is not bound by the rules of evidence, save in circumstances where serious prejudice might result, such evidence is usually admitted subject to lesser weight being given to it.
Having considered the concerns raised by Dr Glover, I find that not permitting the husband to be recalled to give evidence would not impact on the correctness of the decision I am required to make.
Irremediable prejudice
Although Dr Glover relied on what the Tribunal said in Kowalski regarding excluding fresh evidence where it would cause irremediable prejudice, I did not understand Mr Evans to be submitting that the Commissioner would suffer prejudice were the case reopened.
Reasonable opportunity to present case
Dealing with Mr Evans's first submission that the applicants had been given a reasonable opportunity to present their case, it is difficult not to accept that submission. From as early as the first day of the substantive hearing, the applicants were aware through questions I raised regarding the husband and Mr Klinkatsis that the Commissioner was likely to seek to draw adverse inferences from their failure to give evidence. On the second hearing day the matter adjourned shortly after 12:00 pm at the conclusion of evidence. The applicants therefore had time to discuss matters with their legal representatives and in particular whether further evidence should have been called on the following day. However, nothing was raised with the Tribunal and on the following morning, the parties went into closing submissions. In these circumstances, it cannot be said that the applicants had not been given a reasonable opportunity to present their case in accordance with s. 39 (1) of the AAT Act.
The reasonable opportunity requirement is sometimes expressed in a different form. The Full Court of the Federal Court (Smithers, Deane and Fisher JJ) in Sullivan v Department of Transport (1978) 1 ALD 383 explained that the Tribunal in dealing with an application for review was plainly under a duty to act judicially, that is to say with judicial fairness and detachment.
The Court said, at 402:
Where a Tribunal is under a duty to act judicially, the principle that a party must be given a reasonable opportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe (see R v Moody (1977) 17 ALR 219 at 225).
The Full Court of the Federal Court of Australia (Spender, Drummond and Merkel JJ) in Boucher v Australian Securities Commission (1996) 71 FCR 122 dealt with an application to reopen a hearing held by the respondent for the purpose of determining whether it should make a banning order under s. 829 of the Corporations Law. Following a hearing, the respondent made further investigations and informed the appellant's solicitors that fresh evidence had come to light which it wanted to have included in the material considered by the delegate. The appellant opposed the application but, notwithstanding that objection, the delegate announced that that he proposed to receive further evidence. The delegate said that it was in the interests of justice that he hear all the evidence available and not just that which was before him at the previous hearing.
The judge at first instance identified the only issue for his determination as being whether the principles referred to in Murray v Figge (1974) 4 ALR 612 applied to the reopening of the hearing before the Commission's delegate for the purpose of receiving the additional evidence. He took the view that whatever the correct principles were which govern the reopening of a party's case in litigation in a court, they did not apply to the hearing conducted by the Commission's delegate. He did however hold that the delegate was bound to observe the requirements of natural justice. The Court said, at 129:
… the rules of natural justice are flexible in their application to any particular case and that they require nothing more or less than what is fair in all the circumstances of the case to the person whose interests may be affected.
The Court also made this observation, at 131:
His Honour did not refer to the reasons why the Commission's lawyer sought to re-open the hearing to adduce further evidence. In the usual course, that would be a relevant consideration for the delegate in considering whether to reopen the hearing. A deliberate decision by a party in court proceedings not to rely on certain evidence in presenting its case at trial ordinarily will be fateful to that party's application to re-open its case to call that evidence: see Smith v NSW Bar Association (at 266). But even if the failure by the Commission's lawyer to rely on [the proposed witness] from the outset were due to a deliberate decision not to use his evidence, that would not necessarily, by itself, be sufficient to make it a denial of procedural fairness to the appellant to permit that evidence to be put before the delegate after the appellant had presented his case: as pointed out earlier, different considerations apply to curial proceedings to those applicable in administrative proceedings.
However, it should be borne in mind that the Tribunal's duty is simply to provide parties a reasonable opportunity to present their case. As the Full Court said in Sullivan at 403:
In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.
In my opinion, it could not be said in this case that the applicants have not been given every opportunity to properly present their case. Nor did Dr Glover make any point about this in his submissions on the hearing to reopen the substantive hearing.
Expeditious hearing and disposition

Although Mr Evans referred to the Tribunal's obligation to conduct proceedings with as much expedition as a proper consideration of the matters permits (s. 33 (1)(b) the AAT Act) and to what he described as its overriding obligation to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s. 2A of the AAT Act), I explained to Mr Evans that, in particular, the provisions in s. 2A should not be considered as being restrictive. The High Court of Australia in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, when dealing with identical provisions in the Migration Act 1958 said, at 628:
The history of legislative provisions similar to s 420 was examined in Qantas Airways Ltd v Gubbins (39). They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.
The High Court cited with approval the decision of Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported decision, Federal Court of Australia, 6 May 1997), where his Honour said, at 1.1.2:
In my respectful opinion, s 420 contains general exhortatory provisions, the terms of which do not conform to the common understanding of a "procedure", which, to my mind, signifies the steps, more or less precisely identified, which are or may be involved in particular proceedings…
It follows, in my opinion, that s. 2A cannot be relied upon for the purposes of restricting the reopening of this hearing.
Public interest in a finality in litigation
There is however strong judicial support for the proposition that there is a public interest in finality in litigation. Although no doubt there would be some dispute about whether proceedings before the Tribunal, even in the Taxation Division, amount to litigation, Finn J in Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6 had no hesitation in applying that proposition on an appeal from a Tribunal decision. Mr Rana complained that he had not been accorded procedural fairness because of the Tribunal's refusal to permit him to recall a doctor who had given evidence at the hearing. Finn J said, at [64]:
The Tribunal was generous in the time and the consideration it gave to his application and in the opportunity it gave him to call witnesses in support including Dr De Pasquale. It was in the circumstances open to it to insist on finality, the moreso [sic] as it reasonably considered that Dr De Pasquale had already provided his opinion on the very matter for which Mr Rana sought his recall. I do not consider that there was practical unfairness to Mr Rana in the course taken despite his sense of grievance about it. He was given a reasonable opportunity to present his case: see s 39 of the AAT Act.
The courts have consistently taken the view that there is a public interest in the finality to litigation. As Mansfield J said in The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust (ACN 083629225) v Lenard's Pty Ltd (ACN 010711145) (No. 2) [2004] FCA 1310, at [22]:
It is plain that the Court should not provide a back door method by which unsuccessful litigants can seek to re-argue their cases by giving an opportunity to re-open them: see e.g. per Mason CJ in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303. There is a public interest in the finality of litigation.
Similarly, the Victorian Court of Appeal (Harper and Tate JJA and Beach AJA) said in Spotlight Pty Ltd (ACN 005180861) v Ncon Australia Ltd (ARBN 099019851) [2012] VSCA 232, at [17]:
There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgement reserved, to be reopened. The need for finality in litigation is one.… Were applications to reopen to be allowed almost as of course, such applications would be regularly made. That would add enormously to the inefficiencies in the administration of justice, even if the reopened hearing was strictly confined.
Deliberate choice not to adduce evidence
Mr Evans, relying on the decision in Kowalski, submitted that applicants should not be permitted to reopen their case where they had made a deliberate choice not to adduce evidence in order to obtain some forensic advantage. In his submissions, Dr Glover denied that the evidence which was now sought to be tendered at a reopened hearing was withheld in order to obtain a forensic advantage. The Tribunal in Kowalski simply said at [36], without providing any authority: Nor would we allow the introduction of further evidence if we were of the opinion that the applicant had deliberately refrained from tendering the evidence at the hearing to obtain some forensic advantage.
Nevertheless, the statement by the Tribunal in Kowalski is not without some authority. The Tribunal in Re Gomez and Commonwealth of Australia (1988) 15 ALD 784 said, at [18]:
Nor would it be reopened where evidence had been deliberately withheld: Hughes v Hill [1937] SASR 285 (Hughes' case).
As Mr Evans submitted, the evidence clearly points to the fact that the applicants made a deliberate decision not to call the husband in advance of the substantive hearing. On the first hearing day I noted that the Tribunal did not have a witness statement from the husband and Dr Glover made it clear that if necessary, he would get instructions as to whether the husband could submit himself for cross-examination.
Mr Evans also referred to the applicants' submission lodged with the Tribunal and served on the Commissioner on 7 February 2013. Dr Glover said, at paragraph 7:
An evidentiary or "tactical" burden arises and is placed on the Commissioner to show that the taxpayers' account of their financial affairs is wrong. Unless the Commissioner goes forward in evidence, successfully challenges and discredits the taxpayers' account, the Commissioner will lose the issue to which the "reasonable explanation" relates and the overall burden of proof which the taxpayer bears will be to that degree discharged.
Mr Evans also submitted that the applicants had advance notice that failure to call the husband would be in issue in the proceedings. The Tribunal has a copy of a letter on file from the ATO to the applicant’s representatives. The letter is dated 10 May 2012 and was received by the Tribunal on that day. Paragraph 5 of that letter states: Finally, we note that you have not filed a witness statement of [the husband]. If any applicant intends to rely on evidence given by [the husband] we require an affidavit or witness statement to be filed and served forthwith. Also, in the outline of submissions provided by the Commissioner on 26 February 2013 (before the substantive hearing commenced on 4 March 2013), Mr Evans noted that the husband had failed to provide evidence in support of his application or the application by the partnership and he set out the consequences, at least from the Commissioner's perspective, of the applicants’ failure to have the husband give evidence. That did not cause any change in the stance taken by the applicants regarding the way in which they intended to present their case. In his closing submissions, Dr Glover said:
In my opening in this appeal I said that the applicants would show that the assessments are excessive, both because the Commissioner has made substantial errors, and in each tax year, on a proper analysis they derive different assessable incomes lower than the Commissioner's estimation. They were the two alternate ways in which I was going to prove the first limb of the case.…
Now, the respondent's counsel has objected that much of the applicant's proof has come through David Mond's statement and its exhibits. And there are many case not evidenced and – when I say not evidenced, not direct evidence, hearsay evidence, unless they are within the exception to the opinion evidence rule. To this the applicants say: 1. On authority. The applicant's proof in this case can be based in estimates and there’s no requirement that they proceed from the taxpayer's own testimony.
Finally, in his closing submissions in reply, Dr Glover said:
And we were asked again why it was [the husband] [was] not call; that's [the husband] who is behind me now. Now, the Tribunal isn't bound by legalities and debating points. The substantial question is, well, why wasn't [the husband] called, and I indicated what the answer was.…
Well, the applicants for their own reasons have decided that there wouldn't have been anything useful.
Given the very clear evidence about this, I find that the applicants made a deliberate choice not to adduce evidence from the husband in order to obtain a forensic advantage. That is despite the fact that he is a party to this proceeding and that he bears the onus of proving, in this case, that the assessment was excessive. That could have been done by explaining and bringing forward evidence of the source of the undisclosed monies in the relevant income years. In other words, Dr Glover sought to avoid adducing evidence from the husband by using the methodology which I have described above at paragraph [123].
I also find that the applicants made a deliberate choice not to adduce evidence from Mr Klinkatsis in order to obtain a forensic advantage. Dr Glover made that clear when he explained why Mr Klinkatsis was not called. He believed that Mr Klinkatsis' evidence would not have assisted the applicants’ case.
Four classes of cases recognised by the courts
Mr Evans also referred to the four classes of cases recognised by the courts where a court may grant leave to reopen a case. There was nothing in the evidence before me to suggest that the evidence which would be given by the husband or Mr Klinkatsis would be fresh evidence, unavailable or not reasonably discoverable prior to the commencement of the substantive hearing. There was no evidence of an inadvertent error and in fact, as I have explained above, the decision not to call those two persons to give evidence was pre-planned. There was no evidence of a mistaken apprehension of the facts or the law. In any event, Dr Glover did not cite that as a reason for seeking to have the substantive hearing reopened. There was no evidence before me regarding whether it would be hard to define and difficult to protect the boundaries of reopened issues.
CONCLUSION
In my opinion, the Tribunal's discretion to reopen the substantive hearing in this matter should not be exercised. There are a number of reasons for this.
Although Dr Glover submitted that the Tribunal had an unfettered discretion to permit the introduction of new evidence, with respect, I cannot agree. In my opinion, despite the fact that proceedings before this Tribunal are plainly administrative, it is incorrect to characterise its functions as inquisitorial in taxation matters. Not only does an applicant in a taxation matter bear the legal onus of proving that the assessment made by the Commissioner was excessive, but a taxpayer also has the right to seek to have the Commissioner's assessment reviewed by the Court on an appeal. The procedure in the Tribunal and the Court is identical. The Tribunal and the Court does over again that which was done by the Commissioner on the material before it. While the Tribunal may have more flexibility in the conduct of its hearing because it is not bound by the rules of evidence, it should not result in the Tribunal coming to a decision any different from that of the Court. The exercise of an unfettered discretion carries with it a significant risk of the Tribunal coming to a decision different from that which the Court would have arrived at if it had heard the case. That cannot be correct.
Significantly, the applicants made a firm decision, well before the commencement of the substantive hearing, not to adduce evidence from the husband or Mr Klinkatsis. Instead, no doubt on legal advice, they chose to prove that the Commissioner's assessment in the income years in question was excessive by having Mr Mond prepare alternative T-Accounts and asset betterment statements which they claimed not only disclosed that the Commissioner's T-Accounts were incorrect, but also proved that the assessments were excessive.
In closing submissions, Dr Glover submitted that neither the husband nor Mr Klinkatsis could provide any further evidence which would be of assistance to the Tribunal in making its decision. However, shortly thereafter, it is apparent that the applicants had a change of mind. Having examined the grounds upon which Dr Glover claimed the hearing should be reopened, I am not convinced that the evidence Dr Glover said would be given by the husband and Mr Klinkatsis would be of any assistance to the Tribunal. In fact, looking closely at those submissions, I have formed the view that the purpose of seeking to adduce evidence from the husband and Mr Klinkatsis is to shore up the applicants’ case in the substantive matter.
While I accept that the Tribunal is not bound by the principles applied by the Courts in determining whether to allow parties to reopen a case, those principles provide a useful guide because, broadly, they are founded in the notion of fairness or natural justice. The Tribunal is under a duty to act judicially even though it is not a court. The applicants in this matter have, in my opinion, been given a reasonable opportunity to present their case. It is not the Tribunal's duty to tell applicants how they should go about presenting their case or what evidence they should call. In fact, in this matter, the applicants were represented by counsel experienced in taxation law matters. They are aware that they bear the onus of proving that an assessment is excessive. How they go about that is up to them and their legal advisors.
There is a public interest that there should be finality, not only in litigation, but also in applications for review by this Tribunal. If that were not so, then it is foreseeable that where a hearing has not gone as well as may have been planned, there is a very high risk that one or other of the parties will make an application to reopen a hearing following its conclusion. That would make the work of this Tribunal impossible. As the Supreme Court of Victoria said, such a course should only be taken in exceptional circumstances. This is not the case before me.
The fact that the Commissioner in this matter intended to submit that the absence of the husband’s evidence would result in a submission to the Tribunal that an adverse inference should be drawn was known to the applicants well in advance of the substantive hearing. It cannot form the basis for reopening the hearing to permit the husband to give evidence. I also have no doubt, as Dr Glover suggested in his closing submissions, that the applicants were aware of the risk of doing so and had nevertheless chosen to proceed along that course.
In my opinion, the applicants have not made out a case for reopening the substantive proceeding. I dismiss their application to do so.

I certify that the preceding 135 (one hundred and thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Egon Fice
..[sgd]......................................................................
Associate
Dated 6 June 2013

Date of interlocutory hearing 8 May 2013

Counsel for the Applicant Dr J Glover

Representatives for the Applicant David Mond & Associates

Counsel for the Respondent Mr N Evans

Solicitors for the Respondent Australian Taxation Office, Legal Services Branch

[2013] AATA 382

6 June 2013

Key Legal Topics

Areas of Law

Taxation Law

Legal Concepts

Onus of Proof

Burden of Proof

Appeal

Reviewable Objection Decision

Assessment

Administrative Law

Division	TAXATION APPEALS DIVISION
File Numbers	2011/2873 - 2011/2877 2011/2879 - 2011/2883 2011/2884 - 2011/2888
Re	Confidential
APPLICANT
And	Commissioner of Taxation
RESPONDENT

Tribunal	Egon Fice, Senior Member
Date	6 June 2013
Place	Melbourne

Date of interlocutory hearing	8 May 2013
Counsel for the Applicant	Dr J Glover
Representatives for the Applicant	David Mond & Associates
Counsel for the Respondent	Mr N Evans
Solicitors for the Respondent	Australian Taxation Office, Legal Services Branch